2016 (9) TMI 1097

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....lam vide de novo Order-in-Original No.13/2008 dated 9.9.2008 disallowed the cenvat credit and confirmed the demand of Rs. 17,19,091/- along with interest and penalty of equivalent amount. 3.1 The appellant filed an appeal before the Commissioner (Appeals) against the said order dated 9.9.2008 of the Asstt. Commissioner. The Commissioner (Appeals) upheld the said original order dated 9.9.2008 of the Asstt. Commissioner, Ratlam. Now, the assessee appellant viz. Ultra Tech Cement unit - Vikram Cement is before the Tribunal against the Order-in-Appeal No.IND-I/57/2009 dated 19.03.2009 of the Commissioner (Appeals). The period involved here is from Jan. 2002 to May, 2002. 4. The appellant has been represented by ld. Advocate, Shri B.L. Narsimhan, who has, inter alia, pleaded, at the strength of written note, as follows- i) the subject items such as ducts are in the nature of pipes and chutes and hoppers are in the nature of material handling equipments and hence, covered as capital goods under Rule 2(b) of Cenvat Credit Rules, 2002. The term input was defined under Rule 2(f) of Cenvat Credit Rules, 2001 and Rule 2(g) of Cenvat Credit Rules, 2002 which included goods used ....

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....e credit has not been taken or utilized wrongly in the present case. 5. The Revenue has been represented by ld. DR, Shri Yogesh Agarwal, who reiterated the findings of impugned order. He additionally has, inter alia, submitted as follows:- i) The term capital goods consist of two words capital and goods. Cenvat credit is available on inputs defined in Rule 2 (k), input services defined in Rule 2(I), and capital goods defined in Rule 2(a) of CCR. ii) As per the Hon'ble Supreme Court s decision in the case of Union of India Vs. Delhi Cloth and General Mills Co. Ltd. 1977 (1) ELT (J 177) (SC) and Indian Cable Co. Ltd. Vs. CCE, Calcutta- 1994 (74) ELT 22, the subject goods, which are steel structures in the form of supports of various ducts /cyclones/platforms and staircases are immovable and cannot be called excisable goods or capital goods . In this regard, he has further cited the following cases laws:- (a) Mittal Engineering Vs. CCE 1996 (88) ELT 622 (SC) (b) Silical Metallurgical Vs. CCE- 1999 (106) ELT 439 (SC) (c) Tata Robbins Fraser Ltd. 1999 (110) ELT 755 (T-Delhi) iii) Capital goods must be first covered as excisable go....

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....ing machinery. The third set-up of items are staircases and ladders and fabricated using the angles, plates, etc. These are apparently not general purpose staircases or ladders but are specifically made and attached to various capital goods in the manufacturing facility for access, supervision and management of various machineries. In this regard, we have examined the photographic evidence to show the place of use of these items. 7.2 We find that the lower authorities denied the credit mainly on the ground that the M.S. items, on which credits have been taken are falling under Chapter 72, which is not covered under the category of capital goods . The second main objection is that these items were used for fabricating the structures, which become immovable upon fixing and hence, results in a non-excisable item. Hence, the credit is not eligible on any of them. We find that the denial of credit by the lower authorities is on the ground that the items are not used in the manufacture of capital goods as none of the items, as described above, arising after fabrication, can be considered as accessories of the capital goods. Further, they become immovable upon fabrication. We find both....

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....nd would not function. 10. In the case of Commissioner of Central Excise, Jaipur v. Rajasthan Spinning & Weaving Mills Ltd., reported in 2010 (255) E.L.T. 481, relied on by the learned counsel appearing for the assessee, the Apex Court, while dealing with the issue in question, in Paragraph Nos. 7 and 8, held as follows : "7. In the present case, it is seen that the items in question were used in the erection of various machineries such as, - new additional Electrostatic Precipitator for raw mill project, additional fly ash handling system, MMD crusher etc. for the Dry Process Cement Manufacturing Plant. It is evident that MS Angles, MS Beams, MS Channels etc. were used in the erection of machineries it become component of the same, which are integral part of Dry Process Cement Manufacturing Plant. It is noted that Fly Ash handlish system is a pollution control equipment and particularly mentioned in Rule 2(a)(A)(ii) of Rules, 2004. The allegation in the above show cause notice that the Chapter Heading of these items were not covered under Rule 2(a) of the Rules, 2004, is not sustainable, in respect of pollution control equipments because the rule does not specify....

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....v. M/s. India Cements Limited) had been appealed against, as of today, there are no details; in any event, the fact herein is that the Revenue does not controvert the facts found by the Assistant Commissioner that the impugned goods were used for fabrication of structurals to support various machines like crusher, kiln, hoppers, pre-heaters conveyor system etc. and that without these structurals, the machinery could not be erected and would not function. 9. In the decision reported in AIT-2011-358-HC (The Commissioner of Central Excise v. M/s. India Cements Limited), pointing out to Rule 57Q and the interpretation placed by the Apex Court in the decision reported in 2010 (255) E.L.T. 481 (Commissioner of Central Excise, Jaipur v. Rajasthan Spinning & Weaving Mills Ltd.) and in particular Paragraph Nos. 12 and 13, wherein the Apex Court had applied the user test by following the Jawahar Mills s case, this Court held that steel plates and M.S. Channels used in the fabrication of chimney would fall within the ambit of capital goods . In the face of this decision in the assessee s own case there being no new circumstance or decision in favour of the Revenue, we do not find any....